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Alter Medical Certification, Lose FMLA Protections

An employee who alters a medical certification form without the permission of the health care provider is not entitled to FMLA leave, regardless of whether the unaltered form would have supported FMLA coverage. Such falsification is also independent grounds for disciplinary action.

In Smith v. The Hope School, No. 06-3244, 2008 U.S. Dist. LEXIS 29544 (C.D.Ill. April 10, 2008), the employee requested FMLA leave due to stress. In response to the School's request, Smith secured a medical certification from her physician. The doctor indicated that Smith suffered a serious health condition as a result of severe recurrent muscle tension headaches and neck and arm pain as a result of work-related trauma.

It is undisputed that Smith added the words "plus previous depression" to her doctor's description on the certification form. She did not consult with her physician before adding this information. Smith had never been diagnosed with depression. She faxed the form to her employer.

Believing that the medical certification had been altered, the School contacted Smith's doctor to check. The School did not obtain Smith's consent before checking on the authenticity of the certification. The School confirmed that the FMLA paperwork had been altered. The School next contacted a DOL representative, who advised that the School could deny Smith FMLA leave based on the alteration of the FMLA documentation. That is what the School did. The School subsequently terminated Smith for falsification of paperwork and failure to show up on three occasions.

Smith sued, alleging that the School improperly denied her FMLA leave and terminated her in retaliation for exercising her rights under the FMLA. The School moved for summary judgment seeking to dismiss Smith's FMLA lawsuit.

Based on a review of the case law, the court found that falsification of a certification is grounds for denial of leave regardless of whether the unaltered form would have supported the employee's FMLA leave request. The court also held that termination may be an appropriate response to the alteration of a certification form, even if the unaltered form would have supported leave.

The court found that the School violated the FMLA by contacting Smith's doctor directly without first obtaining Smith's consent, as required by 29 CFR 825.307. The violation, the court went on to find, was without a remedy because it did not interfere with, restrain or deny Smith's FMLA rights.

The court reasoned that the School would have denied the leave anyway whether Smith granted such permission or not. If permission was granted, the School would have received the same information it obtained through its unauthorized phone call: that the doctor did not certify that Smith previously suffered from depression. If Smith refused permission, the School would have denied her FMLA leave request.

The court also reasoned that the School did not base its FMLA denial on the fact that her doctor did not diagnose Smith with depression; it based its denial, in part, on its belief that she falsified the certification form.

Because she falsified her medical certification, Smith, the court found, did not engage in protected activity. As such, she could not make out a prima facie FMLA retaliation claim.

Comment: Courts have had very little sympathy for employee's who alter FMLA medical documentation. The better practice is for the employee or covered family member to request that the health care provider make any changes on the existing form, or issue a brand new certification, before it is submitted. At minimum, an employee should obtain the prior approval (preferably in writing) of his or her health care provider before submitting an altered FMLA medical certification.